Exhibit 3.25
AMENDED AND RESTATED BYLAWS
OF
ELAM CONSTRUCTION, INC.
ARTICLE I
Offices
Section 1.1Principal Offices. The principal office of Elam Construction, Inc. (the “Corporation”) shall be designated from time to time by the Corporation and may be within or outside of Colorado.
Section 1.2Additional Offices. The Corporation may have such other offices, either within or outside Colorado, as the Board of Directors of the Corporation (the “Board”) may designate or as the business of the Corporation may require from time to time.
Section 1.3Registered Office. The registered office of the Corporation required by the Colorado Business Corporation Act (as such is amended from time to time, the “Act”) to be maintained in Colorado may be, but need not be, identical with the principal office, and the address of the registered office may be changed from time to time by the Board.
ARTICLE II
Shareholders
Section 2.1Annual Meeting. The annual meeting of the shareholders shall be held on a date and at a time fixed by the Board, for the transaction of such business as may come before the meeting. A shareholder may apply to the district court in the county in Colorado where the Corporation’s principal office is located or, if the Corporation has no principal office in Colorado, to the district court of the county in which the Corporation’s registered office is located to seek an order that a shareholder meeting be held (a) if an annual meeting was not held within six months after the close of the Corporation’s most recently ended fiscal year or fifteen months after its last annual meeting, whichever is earlier, or (b) if the shareholder participated in a proper call of or proper demand for a special meeting and notice of the special meeting was not given within 30 days after the date of the call or the date the last of the demands necessary to require calling of the meeting was received by the Corporation pursuant to C.R.S. §7-107-102(1)(b), or the special meeting was not held in accordance with the notice.
Section 2.2Special Meetings. Unless otherwise prescribed by statute, special meetings of the shareholders may be called for any purpose by the Board. The President shall call a special meeting of the shareholders if the Corporation receives one or more written demands for the meeting, stating the purpose or purposes for which it is to be held, signed and dated by holders of shares representing at least ten percent of all the votes entitled to be cast on any issue proposed to be considered at the meeting.
Section 2.3Place of Meeting. The Board may designate any place, either within or outside Colorado, as the place for any annual meeting or any special meeting called by the Board. A waiver of notice signed by all shareholders entitled to vote at a meeting may designate any place, either within or outside Colorado, as the place for such meeting. If no designation is made, or if a special meeting is called other than by the Board, the place of meeting shall be the principal office of the Corporation.
Section 2.4Notice of Meeting. Written notice stating the place, date and hour of the meeting shall be given not less than ten nor more than 60 days before the date of the meeting, except that (a) if the number of authorized shares is to be increased, at least 30 days’ notice shall be given, or (b) if any other longer notice period is required by the Act, such period shall be observed. Notice of a special meeting shall include a description of the purpose or purposes of the meeting. Notice of an annual meeting need not include a description of the purpose or purposes of the meeting except the purpose or purposes shall be stated with respect to (v) an amendment to the Amended and Restated Articles of Incorporation of the Corporation, as they may be amended from time to time (the “Articles”), (w) a merger or share exchange in which the Corporation is a party and, with respect to a share exchange, in which the Corporation’s shares will be acquired, (x) a sale, lease, exchange or other disposition, other than in the usual and regular course of business, of all or substantially all of the property of the Corporation or of another entity which this Corporation controls, in each case with or without the goodwill, (y) a dissolution of the Corporation, or (z) any other purpose for which a statement of purpose is required by the Act. Notice shall be given personally or by mail, private carrier, telegraph, teletype, electronic mail, electronically transmitted facsimile or other form of wire or wireless communication by or at the direction of the President, the Secretary or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed and if in a comprehensible form, such notice shall be deemed to be given and effective when deposited in the United States mail, addressed to the shareholder at his address as it appears in the Corporation’s current record of shareholders, with postage prepaid. If notice is given other than by mail, and provided that such notice is in a comprehensible form, the notice is given and effective on the date receipt by the shareholders is confirmed.
If requested by the person or persons lawfully calling such meeting, the Secretary shall give notice thereof at corporate expense. No notice need be sent to any shareholder if three successive notices mailed to the last known address of such shareholder have been returned as undeliverable until such time as another address for such shareholder is made known to the Corporation by such shareholder. In order to be entitled to receive notice of any meeting, a shareholder shall advise the Corporation in writing of any change in such shareholder’s mailing address as shown on the Corporation’s books and records.
When a meeting is adjourned to another date, time or place, notice need not be given of the new date, time or place if the new date, time or place of such meeting is announced before adjournment at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which may have been transacted at the original meeting. If the adjournment is for more than 120 days, or if a new record date is fixed for the adjourned meeting, a new notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting as of the new record date.
A shareholder may waive notice of a meeting before or after the time and date of the meeting by a writing signed by such shareholder. Such waiver shall be delivered to the Corporation for filing with the corporate records. Further, by attending a meeting either in person or by proxy, a shareholder waives objection to lack of notice or defective notice of the
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meeting unless the shareholder objects at the beginning of the meeting to the holding of the meeting or the transaction of business at the meeting because of lack of notice or defective notice. By attending the meeting, the shareholder also waives any objection to consideration at the meeting of a particular matter not within the purpose or purposes described in the meeting notice unless the shareholder objects to considering the matter when it is presented.
Section 2.5Fixing of Record Date. For the purpose of determining shareholders entitled to (a) notice of or vote at any meeting of shareholders or any adjournment thereof, (b) receive distributions or share dividends, or (c) demand a special meeting, or to make a determination of shareholders for any other proper purpose, the Board may fix a future date as the record date for any such determination of shareholders, such date in any case to be not more than 70 days, and, in case of a meeting of shareholders, not less than ten days, prior to the date on which the particular action requiring such determination of shareholders is to be taken. If no record date is fixed by the directors, the record date shall be the date on which notice of the meeting is mailed to the shareholders, or the date on which the resolution of the Board providing for a distribution is adopted, as the case may be. When a determination of shareholders entitled to vote at any meeting of shareholders is made as provided in this Section, such determination shall apply to any adjournment thereof unless the Board fixes a new record date, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting.
Notwithstanding the above, the record date for determining the shareholders entitled to take action without a meeting or entitled to be given notice of action so taken shall be the date a writing upon which the action is taken is first received by the Corporation. The record date for determining shareholders entitled to demand a special meeting shall be the date of the earliest of any of the demands pursuant to which the meeting is called.
Section 2.6Voting Lists. The Secretary shall make, at the earlier of ten days before each meeting of shareholders or two business days after notice of the meeting has been given, a complete list of the shareholders entitled to be given notice of such meeting or any adjournment thereof. The list shall be arranged by voting groups and within each voting group by class or series of shares, shall be in alphabetical order within each class or series, and shall show the address of and the number of shares of each class or series held by each shareholder. For the period beginning the earlier of ten days prior to the meeting or two business days after notice of the meeting is given and continuing through the meeting and any adjournment thereof, this list shall be kept on file at the principal office of the Corporation, or at a place (which shall be identified in the notice) in the city where the meeting will be held. Such list shall be available for inspection on written demand by any shareholder (including for the purpose of this Section 2.6 any holder of voting trust certificates) or his agent or attorney during regular business hours and during the period available for inspection. The original stock transfer books shall be prima facie evidence as to the shareholders entitled to examine such list or to vote at any meeting of shareholders.
Any shareholder, his agent or attorney may copy the list during regular business hours and during the period it is available for inspection, provided (a) the shareholder has been a shareholder for at least one hundred twenty days immediately preceding the demand or holds at least five percent of all outstanding shares of any class of shares as of the date of the demand, (b) the demand is made in good faith and for a purpose reasonably related to the demanding
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shareholder’s interest as a shareholder, (c) the shareholder describes with reasonable particularity the purpose and the records the shareholder desires to inspect, (d) the records are directly connected with the described purpose, and (e) the shareholder pays a reasonable charge covering the costs of labor and material for such copies, not to exceed the estimated cost of production and reproduction.
Section 2.7Recognition Procedure for Beneficial Owners. The Board may adopt by resolution a procedure whereby a shareholder of the Corporation may certify in writing to the Corporation that all or a portion of the shares registered in the name of such shareholder are held for the account of a specified person or persons. The resolution may set forth (a) the types of nominees to which it applies, (b) the rights or privileges that the Corporation will recognize in a beneficial owner, which may include rights and privileges other than voting,(c) the form of certification and the information to be contained therein, (d) if the certification is with respect to a record date, the time within which the certification must be received by the Corporation, (e) the period for which the nominee’s use of the procedure is effective, and (f) such other provisions with respect to the procedure as the Board deems necessary or desirable. Upon receipt by the Corporation of a certificate complying with the procedure established by the Board, the persons specified in the certification shall be deemed, for the purpose or purposes set forth in the certification, to be the registered holders of the number of shares specified in place of the shareholder making the certification.
Section 2.8Quorum and Manner of Acting. A majority of the votes entitled to be cast on a matter by a voting group shall constitute a quorum of that voting group for action on the matter. If less than a majority of such votes are represented at a meeting, a majority of the votes so represented may adjourn the meeting from time to time without further notice, for a period not to exceed 30 days for any one adjournment. If a quorum is present at such adjourned meeting, any business may be transacted which might have been transacted at the meeting as originally noticed. The shareholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, unless the meeting is adjourned and a new record date is set for the adjourned meeting.
If a quorum exists, action on a matter other than the election of directors by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast within the voting group opposing the action, unless the vote of a greater number or voting by classes is required by law or the Articles.
Section 2.9Proxies. At all meetings of shareholders, a shareholder may vote by proxy by signing an appointment form or similar writing, either personally or by his duly authorized attorney-in-fact. A shareholder may also appoint a proxy by transmitting or authorizing the transmission of a telegram, teletype, or other electronic transmission providing a written statement of the appointment to the proxy, a proxy solicitor, proxy support service organization, or other person duly authorized by the proxy to receive appointments as agent for the proxy, or to the Corporation. The transmitted appointment shall set forth or be transmitted with written evidence from which it can be determined that the shareholder transmitted or authorized the transmission of the appointment. The proxy appointment form or similar writing shall be filed with the Secretary before or at the time of the meeting. The appointment of a proxy is effective when received by the Corporation and is valid for eleven months unless a different period is expressly provided in the appointment form or similar writing.
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Any complete copy, including an electronically transmitted facsimile or copy, of an appointment of a proxy may be substituted for or used in lieu of the original appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the Corporation to accept the proxy’s authority unless (a) the Corporation had notice that the appointment was coupled with an interest and notice that such interest is extinguished is received by the, Secretary or other officer or agent authorized to tabulate votes before the proxy exercises his authority under the appointment, or (b) other notice of the revocation of the appointment is received by the Secretary or other officer or agent authorized to tabulate votes before the proxy exercises his authority under the appointment. Other notice of revocation may, in the discretion of the Corporation, be deemed to include the appearance at a shareholders’ meeting of the shareholder who granted the proxy and his voting in person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not affect the right of the Corporation to accept the proxy’s authority unless notice of the death or incapacity is received by the Secretary or other officer or agent authorized to tabulate votes before the proxy exercises his authority under the appointment.
The Corporation shall not be required to recognize an appointment made irrevocable if it has received a writing revoking the appointment signed by the shareholder (including a shareholder who is a successor to the shareholder who granted the proxy) either personally or by his attorney-in-fact, notwithstanding that the revocation may be a breach of an obligation of the shareholder to another person not to revoke the appointment.
Subject to Section 2.11 and any express limitation on the proxy’s authority appearing on the appointment form, the Corporation is entitled to accept the proxy’s vote or other action as that of the shareholder making the appointment.
Section 2.10Voting of Shares. Each outstanding share, regardless of class shall be entitled to one vote and shall vote as a single class on each matter submitted to a vote at a meeting of shareholders, except to the extent that the voting rights of the shares of any class or classes are limited or denied by the Articles as permitted by the Act. Cumulative voting shall not be permitted in the election of directors or for any other purpose. Each record holder of stock shall be entitled to vote in the election of directors and for any other purpose. Each record holder of stock shall be entitled to vote in the election of directors and shall have as many votes for each of the shares owned by him as there are directors to be elected and for whose election he has the right to vote.
At each election of directors, that number of candidates equaling the number of directors to be elected, having the highest number of votes cast in favor of their election, shall be elected to the Board.
Redeemable shares are not entitled to be voted after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been paid to such holders or deposited with a bank, trust company or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares.
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Section 2.11Corporation’s Acceptance of Votes. If the name signed on a vote, consent, waiver, proxy appointment, or proxy appointment revocation corresponds to the name of a shareholder, the Corporation, if acting in good faith, is entitled to accept the vote, consent, waiver, proxy appointment or proxy appointment revocation and give it effect as the act of the shareholder. If the name signed on a vote, consent, waiver, proxy appointment or proxy appointment revocation does not correspond to the name of a shareholder, the Corporation, if acting in good faith, is nevertheless entitled to accept the vote, consent, waiver, proxy appointment or proxy appointment revocation and to give it effect as the act of the shareholder if: (a) the shareholder is an entity and the name signed purports to be that of an officer or agent of the entity; (b) the name signed purports to be that of an administrator, executor, guardian or conservator representing the shareholder and, if the Corporation requests, evidence of fiduciary status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, proxy appointment or proxy appointment revocation; (c) the name signed purports to be that of a receiver or trustee in bankruptcy of the shareholder and, if the Corporation requests, evidence of this status acceptable to the Corporation has been presented with respect to the vote, consent, waiver, proxy appointment or proxy appointment revocation; (d) the name signed purports to be that of a pledgee, beneficial owner or attorney-in-fact of the shareholder and, if the Corporation requests, evidence acceptable to the Corporation of the signatory’s authority to sign for the shareholder has been presented with respect to the vote, consent, waiver, proxy appointment or proxy appointment revocation; (e) two or more persons are the shareholder as co-tenants or fiduciaries and the name signed purports to be the name of at least one of the co-tenants or fiduciaries, and the person signing appears to be acting on behalf of all the co-tenants or fiduciaries; or (f) the acceptance of the vote, consent, waiver, proxy appointment or proxy appointment revocation is otherwise proper under rules established by the Corporation that are not inconsistent with this Section 2.11.
The Corporation is entitled to reject a vote, consent, waiver, proxy appointment or proxy appointment revocation if the Secretary or other officer or agent authorized to tabulate votes, acting in good faith, has reasonable basis for doubt about the validity of the signature on it or about the signatory’s authority to sign for the shareholder. Neither the Corporation nor its officers nor any agent who accepts or rejects a vote, consent, waiver, proxy appointment or proxy appointment revocation in good faith and in accordance with the standards of this Section 2.11 is liable in damages for the consequences of the acceptance or rejection.
Section 2.12Informal Action by Shareholders. Pursuant to C.R.S. § 7-107-104, any action required or permitted to be taken at a meeting of the shareholders may be taken without a meeting if the shareholders holding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all of the shares entitled to vote thereon were present and voted consent to such action in writing. Action taken under this Section 2.12 has the same force and effect as an action taken at a meeting of shareholders and may be described as such in any document. Action taken under this Section 2.12 is effective as of the date of the last writing necessary to effect the action is received by the Corporation, unless all of the writings specify a different effective date, in which case such specified date shall be the effective date for such action. The record date for determining shareholders entitled to take action without a meeting is the date the Corporation first receives a writing upon which the action is taken.
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Any shareholder who has signed a writing describing and consenting to action taken pursuant to this Section 2.12 may revoke such consent by a writing signed by the shareholder describing the action and stating the shareholder’s prior consent thereto is revoked, if such writing is received by the Corporation before the effectiveness of the action.
Section 2.13Meetings by Telecommunication. Any or all of the shareholders may participate in an annual or special shareholders’ meeting by, or the meeting may be conducted through the use of, any means of communication by which- all persons participating in the meeting may hear each other during the meeting. A shareholder participating in a meeting by this means is deemed to be present in person at the meeting.
ARTICLE III
Board of Directors
Section 3.1General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of the Board, except as otherwise provided in the Act or the Articles.
Section 3.2Number, Qualifications and Tenure. The authorized number of directors serving on the Board shall be determined from time to time by resolution of the Board, provided the Board shall consist of at least one (1) director and no more than five (5) directors. Each director shall be a natural person who is eighteen years of age or older. A director need not be a resident of Colorado or a shareholder of the Corporation.
Directors shall be elected at each annual meeting of the shareholders. Each director shall hold office until the next annual meeting of shareholders following his election and thereafter until his successor shall have been elected and qualified. Directors shall be removed in the manner provided by the Act.
Section 3.3Resignation; Vacancies. Any director may resign at any time by giving written notice to the Corporation. Such resignation shall take effect at the time the notice is received by the Corporation unless the notice specifies a later effective date. Unless otherwise specified in the notice of resignation, the Corporation’s acceptance of such resignation shall not be necessary to make it effective. Any vacancy on the Board must be filled in accordance with the Act. If the directors remaining in office constitute fewer than a quorum of the Board, the directors may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office. If elected by the directors, the director shall hold office until the next annual shareholders’ meeting at which directors are elected. If elected by the shareholders, the director shall hold office for the unexpired term of his predecessor in office; except that, if the director’s predecessor was elected by the directors to fill a vacancy, the director elected by the shareholders shall hold office for the unexpired term of the last predecessor elected by the shareholders.
Section 3.4Regular Meetings. A regular meeting of the Board shall be held without notice immediately after and at the same place as the annual meeting of shareholders. The Board may provide by resolution the time and place, either within or outside Colorado, for the holding of additional regular meetings without other notice.
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Section 3.5Special Meetings. Special meetings of the Board may be called by or at the request of any one director. The person or persons authorized to call special meetings of the Board may fix any place, either within or outside Colorado, as the place for holding any special meeting of the Board called by them, provided that no meeting shall be called outside the state of Colorado unless a majority of the Board has so authorized.
Section 3.6Notice. Notice of any special meeting shall be given at least two days prior to the meeting by written notice either personally delivered or mailed to each director at his business address, or by notice transmitted by telegraph, telex, electronic mail, electronically transmitted facsimile or other form of wire or wireless communication. If mailed, such notice shall be deemed to be given and to be effective on the earlier of (a) three days after such notice is deposited in the United States mail, properly addressed, with postage prepaid, or (b) the date shown on the return receipt, if mailed by registered or certified mail return receipt requested. If notice is given by telex, electronic mail, electronically transmitted facsimile or other similar form of wire or wireless communication, such notice shall be deemed to be given and to be effective when sent, and with respect to a telegram, such notice shall be deemed to be given and to be effective when the telegram is delivered to the telegraph company. If a director has designated in writing one or more reasonable addresses or facsimile numbers for delivery of notice to him, notice sent by mail, telegraph, telex, electronic mail, electronically transmitted facsimile or other form of wire or wireless communication shall not be deemed to have been given or to be effective unless sent to such addresses or facsimile numbers, as the case may be.
A director may waive notice of a meeting before or after the time and date of the meeting by a writing signed by such director. Such waiver shall be delivered to the Corporation for filing with the corporate records. Further, a director’s attendance at or participation in a meeting waives any required notice to him of the meeting unless at the beginning of the meeting, or promptly upon his later arrival, the director objects to holding the meeting or transacting business at the meeting because of lack of notice or defective notice and does not thereafter vote for or assent to action taken at the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board need be specified in the notice or waiver of notice of such meeting.
Section 3.7Quorum. A majority of the number of directors fixed by the Board pursuant to Section 3.2 shall constitute a quorum for the transaction of business at any meeting of the Board. If less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice, for a period not to exceed 60 days at any one adjournment.
Section 3.8Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board.
Section 3.9Compensation. By resolution of the Board, any director may be paid any one or more of the following: (a) his expenses, if any, of attendance at meetings; (b) a fixed sum for attendance at each meeting; (c) a stated salary as director; or (d) such other compensation as the Corporation and the director may reasonably agree upon. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 3.10Presumption of Assent. A director of the Corporation who is present at a meeting of the Board or committee of the Board at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless (a) the director objects at the beginning of the meeting, or promptly upon his arrival, to the holding of the meeting or the transaction of business at the meeting and does not thereafter vote for or assent to any action taken at the meeting, (b) the director contemporaneously requests that his dissent or abstention as to any specific action taken be entered in the minutes of the meeting, or (c) the director causes written notice of his dissent or abstention as to any specific action to be received by the presiding officer of the meeting before its adjournment or by the Corporation within five business days after the adjournment of the meeting. A director may dissent to a specific action at a meeting while assenting to others. The right to dissent to a specific action taken at a meeting of the Board or a committee of the Board shall not be available to a director who voted in favor of such action.
Section 3.11Committees. By resolution of the Board, the Board may designate from among it members an executive committee and one or more other committees, and appoint one or more members of the Board to serve on them. To the extent provided in the resolution, each committee shall have all the authority of the Board, except that no such committee shall have the authority to (a) authorize distributions, (b) approve or propose to shareholders actions or proposals required by the Act to be approved by shareholders, (c) fill vacancies on the Board or any committee thereof, (d) amend the Articles, (e) adopt, amend or repeal the Bylaws, (f) approve a plan of merger not requiring shareholder approval, (g) authorize or approve the reacquisition of shares unless pursuant to a formula or method prescribed by the Board, or (h) authorize or approve the issuance or sale of shares, or contract for the sale of shares or determine the designations and relative rights, preferences and limitations of a class or series of shares, except that the Board may authorize a committee or officer to do so within limits specifically prescribed by the Board. The committee shall then have full power within the limits set by the Board to adopt any final resolution setting forth all preferences, limitations and relative rights of such class or series and to authorize an amendment of the Articles stating the preferences, limitations and relative rights of a class or series for filing with the Secretary of State under the Act.
Sections 3.4, 3.5, 3.6, 3.7, 3.8, and 3.12 of these Bylaws, which govern meetings, notice, waiver of notice, quorum, voting requirements- and action without a meeting of the Board, shall apply to committees and their members appointed under this Section 3.11.
Neither the designation of any such committee, the delegation of authority to such committee, nor any action by such committee pursuant to its authority shall alone constitute compliance by any member of the Board or a member of the committee in question with his responsibility to conform to the standard of care required by law.
Section 3.12Informal Action by Directors. Any action required or permitted to be taken at a meeting of the directors or any committee designated by the Board may be taken without a meeting if a written consent (or counterparts thereof) that sets forth the action so taken is signed by all of the directors entitled to vote with respect to the action taken. Such consent shall have
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the same force and effect as a unanimous vote of the directors or committee members and may be stated as such in any document. Unless the consent specifies a different effective date, action taken under this Section 3.12 is effective at the time the last director signs a writing describing the action taken, unless, before such time, any director has revoked his consent by a writing signed by the director and received by the President or the Secretary.
Section 3.13Telephonic Meetings. The Board may permit any director (or any member of a committee designated by the Board) to participate in a regular or special meeting of the Board or a committee thereof through the use of any means of communication by which all directors participating in the meeting can hear each other during the meeting. A director participating in a meeting in this manner is deemed to be present in person at the meeting.
ARTICLE IV
Officers and Agents
Section 4.1General. The officers of the Corporation shall be as designated by the Board from time to time, each of whom shall be a natural person eighteen years of age or older. Notwithstanding the foregoing, the Board shall delegate to one or more of the officers the responsibility of the Secretary as provided in Section 4.7. The Board or an officer or officers authorized by the Board may appoint such other officers, assistant officers, committees and agents, including a chairman of the Board, assistant secretaries and assistant treasurers, as they may consider necessary. The Board or the officer or officers authorized by the Board shall from time to time determine the procedure for the appointment of officer, their term of office, their authority and duties and their compensation. One person may hold more than one office. In all cases where the duties of any officer, agent or employee are not prescribed by the Bylaws or by the Board, such officer, agent or employee shall follow the order and instructions of the President.
Section 4.2Appointment and Term of Office. The officer of the Corporation shall be appointed by the Board at each annual meeting of the Board held after each annual meeting of the shareholders. If the appointment of officers is not made at such meeting or if an officer or officers are to be appointed by another officer or officers of the Corporation, such appointments shall be made as soon thereafter as conveniently may be. Each officer shall hold office until the first of the following occurs; his successor shall have been duly appointed and qualified, his death, his resignation, or his removal in the manner as provided in Section 4.3.
Section 4.3Resignation and Removal. An officer may resign at any time by giving written notice of resignation to the Corporation. The resignation is effective when the notice is received by the Corporation unless the notice specifies a later effective date.
Any officer or agent may be removed at any time with or without cause by the Board or an officer or officers authorized by the Board. Such removal does not affect the contract rights, if any, of the Corporation or of the person so removed. The appointment of an officer or agent shall not in itself create contract rights.
Section 4.4Vacancies. A vacancy in any office, however occurring, may be filled by the Board, or by the officer or officers authorized by the Board, for the unexpired portion of the
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officer’s term. If an officer resigns and his resignation is made effective at a later date, the Board, or officer or officers authorized by the Board may permit the officer to remain in office until the effective date. In the alternative the Board, or officer or officers authorized by the Board, may remove the officer at any time before the effective date and may fill the resulting vacancy.
Section 4.5President. The President shall have general and active control of the Corporation’s affairs and business and general supervision of its officers, agents and employees. Unless otherwise directed by the Board, the President shall attend in person or by substitute appointed by him, or shall execute on behalf of the Corporation written instruments appointing a proxy or proxies to represent the Corporation, at all meetings of the shareholders of any other corporation or other entity in which the Corporation holds any stock. On behalf of the Corporation, the President may in person or by substitute or by proxy execute written waivers of notice and consents with respect to any such meetings. At all such meetings and otherwise, the President, in person or by substitute or proxy, may vote the stock held by the Corporation, execute written consents and other instruments with respect to such stock, and exercise any and all rights and powers incident to the ownership of said stock, subject to the instructions, if any, of the Board.
Section 4.6Vice Presidents. The Vice Presidents shall assist the President and shall perform such duties as may be assigned to them by the President or by the Board. In the absence of the President, the Vice President, if any (or, if more than one, the Vice Presidents in the order designated by the Board, or if the Board makes no such designation, then the Vice President designated by the President, or if nether the Board nor the President makes any such designation, the senior Vice President as determined by first election to that office), shall have the powers and perform the duties of the President.
Section 4.7Secretary. The Secretary shall (a) prepare and maintain as permanent records the minutes of the proceedings of the shareholders and the Board, a record of all actions taken by the shareholders or Board without a meeting, a record of all actions taken by a committee of the Board in place of the Board on behalf of the Corporation, and a record of all waivers of notice of meetings or shareholders and of the Board or any committee thereof, (b) see that all notices are duly given in accordance with the provisions of the Bylaws and as required by law, (c) serve as custodian of the corporate records and of the seal of the Corporation and affix the seal to all documents when authorized by the Board, (d) keep at the Corporation’s registered office or principal place of business a record containing the names and addresses of all shareholders in a form that permits preparation of a list of shareholders arranged by voting group and by class or series of shares within each voting group, that is alphabetical within each class or series and that shows the address of, and the number of shares of each class or series held by, each shareholder, unless such a record shall be kept at the office of the Corporation’s transfer agent or registrar, (e) maintain at the Corporation’s principal office the original or copies of the Articles, Bylaws, minutes of all shareholders’ meetings and records of all action taken by shareholders without a meeting for the past three years, all written communications within the past three years to shareholders as a group or to the holders of any class or series of shares as a group, a list of the names and business addresses of the current directors and officers, a copy of the Corporation’s most recent corporate report filed with the Secretary of State, and financial statement showing in reasonable detail the Corporation’s assets and liabilities and results of operations for the last
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three years, (f) have general charge of the stock transfer books of the Corporation unless the Corporation has a transfer agent, (g) authenticate records of the Corporation, and (h) in general, perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him by the President or by the Board, and prepare and maintain such records and information as required by C.R.S. § 7-116-101. Assistant secretaries, if any, shall have the same duties and powers, subject to supervision by the Secretary. The directors and/or shareholders may however respectively designate a person other than the Secretary or assistant secretary to keep the minutes of their respective meetings.
Any books, records, or minutes of the Corporation may be in written form or in any form capable of being converted into written form within a reasonable time.
Section 4.8Treasurer. The Treasurer shall be the principal financial officer of the Corporation, shall have the care and custody of all funds, securities, evidences of indebtedness and other personal property of the Corporation and shall deposit the same in accordance with the instructions of the Board. He shall receive and give receipts for money paid in on account of the Corporation, and shall pay out of the Corporation’s funds on hand all bills, payrolls and other just debts of the Corporation of whatever nature upon maturity. He shall perform all other duties incident to the office of the Treasurer and, upon request of the Board, shall make such reports to it as may be required at any time. He shall, if required by the Board, give the Corporation a bond in such sums and with such sureties as shall be satisfactory to the Board, conditioned upon the faithful performance of his duties and for the restoration to the Corporation all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. He shall have such powers and perform such other duties as may from time to time be prescribed by the Board or the President. The assistant treasurers, if any, shall have the same powers and duties, subject to the supervision of the Treasurer. The Treasurer shall also be the principal accounting officer of the Corporation. He shall prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account as required by the Act, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit and prepare and furnish to the President and the Board statements of account showing the financial position of the Corporation and the results of its operations.
ARTICLE V
Stock
Section 5.1Certificates. The Board shall be authorized to issue any of its classes of shares with or without certificates. The fact that the shares are not represented by certificates shall have no effect on the rights and obligations of shareholders. If the shares are represented by certificates, such shares shall be represented by consecutively numbered certificates signed, either manually or by facsimile, in the name of the Corporation by one or more persons designated by the Board. In case any officer who has signed or whose facsimile signature has been placed upon such certificate shall have ceased to be such officer before such certificate is issued, such certificate may nonetheless be issued by the Corporation, with the same effect as if he were such officer at the date of its issue. Certificates of stock shall be in such form and shall contain such information consistent with law as shall be prescribed by the Board. If shares are not represented by certificates, within a reasonable time following the issue or transfer of such shares, the Corporation shall send the shareholder a complete written statement of all of the information required to be provided to holders of uncertificated shares by the Act.
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Section 5.2Consideration for Shares. Certificated or uncertificated shares shall not be issued until the shares represented thereby are fully paid. The Board may authorize the issuance of shares for consideration consisting of any tangible or intangible property or benefit to the Corporation, including cash, promissory notes, services performed or other securities of the Corporation. Future services shall not constitute payment or partial payment for shares of the Corporation. The promissory note of a subscriber or an affiliate of a subscriber shall not constitute payment or partial payment for shares of the Corporation unless the note is negotiable and is secured by collateral, other than the shares being purchased, having a fair market value at least equal to the principal amount of the note. For purposes of this Section 5.2, “promissory note” means a negotiable instrument on which there is an obligation to pay independent of collateral and does not include a non-recourse note.
Section 5.3Lost Certificates. In case of the alleged loss, destruction or mutilation of a certificate of stock, the Board may direct the issuance of a new certificate in lieu thereof upon such terms and conditions in conformity with law as the Board may prescribe. The Board may in it discretion require an affidavit of lost certificate and/or a bond in such form and amount and with such surety as it may determine before issuing a new certificate.
Section 5.4Transfer of Shares. Upon surrender to the Corporation or to a transfer agent of the Corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, and receipt of such documentary stamps as may be required by law and evidence of compliance with all applicable securities laws and other restrictions, the Corporation shall issue a new certificate to the person entitled thereto, and cancel the old certificate. If there shall be a proper transfer of uncertificated shares, upon delivery to the Corporation of proper evidence of succession, assignment or authority to transfer and evidence of compliance with all applicable securities laws and other restrictions, the Corporation shall take the necessary measures to reflect such transfer in its records. Every transfer of stock described in this Section 5.4 shall be entered on the stock books of the Corporation, which shall be kept at its principal office or by the person and the place designated by the Board.
Except as otherwise expressly provided in Sections 2.7 and 2.11, and except for the assertion of dissenters’ rights to the extent provided in Article 113 of the Act, the Corporation shall be entitled to treat the registered holder of any shares of the Corporation as the owner thereof for all purposes, and the Corporation shall not be bound to recognize any equitable or other claim to, or interest in, such shares or rights deriving from such shares on the part of any person other than the registered holder, including without limitation, any purchaser, assignee or transferee of such shares or rights deriving from such shares, unless and until such other person becomes the registered holder of such shares, whether or not the Corporation shall have either actual or constructive notice of the claimed interest of such other person.
Section 5.5Transfer Agent, Registrars and Paving Agents. The Board may at it discretion appoint one or more transfer agents, registrars and agents for making payment upon any class of stock, bond, debenture or other security of the Corporation. Such agents and registrars may be located either within or outside Colorado. They shall have such rights and duties and shall be entitled to such compensation as may be agreed.
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ARTICLE VI
Indemnification of Certain Persons
Section 6.1Indemnification. For purposes of this Article VI: (a) a “Required Indemnitee” means any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal, by reason of the fact that he is or was a director or officer of the Corporation, or such person, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, fiduciary or agent of any foreign or domestic profit or nonprofit corporation or of any partnership, joint venture, trust, profit or nonprofit unincorporated association, limited liability company, or other enterprise or employee benefit plan; (b) a “Discretionary Indemnitee” means any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether formal or informal, by reason of the fact that he is or was an employee, fiduciary or agent of the Corporation (other than a director or officer of the Corporation), or such person is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, fiduciary or agent of any foreign or domestic profit or nonprofit corporation or of any partnership, joint venture, trust, profit or nonprofit unincorporated association, limited liability company, or other enterprise or employee benefit plan; and (c) a Proper Person shall mean a person that is either a Required Indemnitee or a Discretionary Indemnitee. The Corporation shall indemnify any Required Indemnitee, and may, at the Board’s discretion, indemnify any Discretionary Indemnitee, against reasonably incurred expenses (including attorneys’ fees), judgments, penalties, fines (including any excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement reasonably incurred by him in connection with such action, suit or proceeding if it is determined by the groups set forth in Section 6.4 that he conducted himself in good faith and that he reasonably believed (x) in the case of conduct in his official capacity with the Corporation, that such conduct was in the Corporation’s best interests, (y) in all other cases (except criminal cases), that his conduct was at least not opposed to the Corporation’s best interests, or (z) in the case of any criminal proceeding, that he had no reasonable cause to believe his conduct was unlawful. A Proper Person will be deemed to be acting in his official capacity while acting as a director, officer, employee, fiduciary or agent on behalf of this Corporation and not while acting on this Corporation’s behalf for some other entity.
No indemnification shall be made under this Article VI to a Proper Person with respect to any claim, issue or matter in connection with a proceeding by or in the right of the Corporation in which the Proper Person was adjudged liable to the Corporation or in connection with any proceeding charging that the Proper Person derived an improper personal benefit, whether or not involving action in an official capacity, in which he was adjudged liable on the basis that he derived an improper personal benefit. Further, indemnification under this Article VI in connection with a proceeding brought by or in the right of the Corporation shall be limited to reasonable expenses, including attorneys’ fees, incurred in connection with the proceeding.
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Section 6.2Right to Indemnification. The Corporation shall indemnify any Required Indemnitee, and may, at the Board’s discretion, indemnify any Discretionary Indemnitee, who was wholly successful, on the merits or otherwise, in defense of any action, suit, or proceeding as to which he was entitled to indemnification under Section 6.1 against expenses (including attorneys’ fees) reasonably incurred by him in connection with the proceeding without the necessity of any action by the Corporation other than the determination in good faith that the defense has been wholly successful.
Section 6.3Effect of Termination of Action. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person seeking indemnification did not meet the standards of conduct described in Section 6.1. Entry of judgment by consent as part of a settlement shall not be deemed an adjudication of liability.
Section 6.4Groups Authorized to Make Indemnification Determination. Except where there is a right to indemnification as set forth in Section 6.1 or 6.2, or where indemnification is ordered by a court in Section 6.5, any indemnification shall be made by the Corporation only as authorized in the specific case upon a determination by a proper group that indemnification of the Proper Person is permissible under the circumstances because he has met the applicable standards of conduct set forth in Section 6.1. This determination shall be made by the Board by a majority vote of those present at a meeting at which a quorum is present, which quorum shall consist of directors not parties to the proceeding (“Quorum”). If a Quorum cannot be obtained, the determination shall be made by a majority vote of a committee of the Board designated by the Board, which committee shall consist of two or more directors not parties to the proceeding, except that directors who are parties to the proceeding may participate in the designation of directors for the committee. If a Quorum cannot be obtained and the committee cannot be established or even if a Quorum is obtained or the committee is designated and a majority of the directors constituting such Quorum or committee so directs, the determination shall be made by (a) independent legal counsel selected by a vote of the Board or the committee in the manner specified in this Section 6.4 or, if a Quorum of the full Board cannot be obtained and a committee cannot be established, by independent legal counsel selected by a majority vote of the full Board (including directors who are parties to the action) or (b) a vote of the shareholders.
Section 6.5Court-Ordered Indemnification. Any Required Indemnitee may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction for mandatory indemnification under Section 6.2, including indemnification for reasonable expenses incurred to obtain court-ordered indemnification. If the court determines that such Required Indemnitee is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not he met the standards of conduct set forth in Section 6.1 or was adjudged liable in the proceeding, the court may order such indemnification as the court deems proper except that if the Required Indemnitee has been adjudged liable, indemnification shall be limited to reasonable expenses incurred in connection with the proceeding and reasonable expenses incurred to obtain court-ordered indemnification.
Section 6.6Advance of Expenses. Reasonable expenses (including attorney’s fees) incurred in defending an action, suit or proceeding as described in Section 6.1 may, at the Board’s discretion, be paid by the Corporation to any Proper Person in advance of the final
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disposition of such action, suit or proceeding upon receipt of (a) a written affirmation of such Proper Person’s good faith belief that he has met the standards of conduct prescribed by Section 6.1, (b) a written undertaking, executed personally or on the Proper Person’s behalf, to repay such advances if it is ultimately determined that he did not meet the prescribed standards of conduct (the undertaking shall be an unlimited general obligation of the Proper Person but need not be secured and may be accepted without reference to financial ability to make repayment), and (c) a determination is made by the proper group (as described in Section 6.4) that the facts as then known to the group would not preclude indemnification. Determination and authorization of payments shall be made in the same manner specified in Section 6.4.
Section 6.7Witness Expenses. This Article VI does not limit the Corporation’s authority to pay or reimburse expenses incurred by a director in connection with an appearance as a witness in a proceeding at a time when he has not been made named defendant or respondent in the proceeding.
Section 6.8Report to Shareholders. Any indemnification of or advance of expenses to a director in accordance with this Article VI, if arising out of a proceeding by or on behalf of the Corporation, shall be reported in writing to the shareholders with or before the notice of the next shareholders’ meeting. If the next shareholder action is taken without a meeting at the instigation of the Board, such notice shall be given to the shareholders at or before the time the first shareholder signs a writing consenting to such action.
ARTICLE VII
Provision of Insurance
By action of the Board, notwithstanding any interest of the directors in the action, the Corporation may purchase and maintain insurance, in such scope and amounts as the Board deems appropriate on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the Corporation, or who while a director, officer, employee, fiduciary or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee, fiduciary or agent of any other foreign or domestic corporation or of any partnership, joint venture, trust, profit or nonprofit unincorporated association, limited liability company or other enterprise or employee benefit plan, against any liability asserted against, or incurred by, him in that capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of Article VI or applicable law. Any such insurance may be procured from any insurance company designed by the Board, whether such insurance company is formed under the laws of Colorado or any other jurisdiction of the United States or elsewhere, including any insurance company in which the Corporation has an equity interest or any other interest, through stock ownership or otherwise.
ARTICLE VIII
Miscellaneous
Section 8.1Seal. The Board may adopt a corporate seal of the Corporation which shall be in such form as they determine from time to time.
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Section 8.2Fiscal Year. The fiscal year of the Corporation shall be determined by the Board.
Section 8.3Amendments. The Board shall have power, to the maximum extent permitted by the Act, to make, amend and repeal the Bylaws of the Corporation at any regular or special meeting of the Board unless the shareholders, in making, amending or repealing a particular bylaw, expressly provide that the directors may not amend or repeal such bylaw. The shareholders also shall have the power to make, amend or repeal the Bylaws of the Corporation at any annual meeting or at any special meeting called for that purpose.
Section 8.4Gender. The masculine gender is used in these Bylaws as a matter of convenience only and shall be interpreted to include the feminine and neuter genders, and visa versa, as the circumstances indicate.
Section 8.5Conflicts. In the event of any irreconcilable conflict between these Bylaws and either the Articles or applicable law, the latter shall control.
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